[ This article was published in the New Indian Express on 24.1.2017 under the title: LESSONS FOR THE UNIFORM SOCIAL CODE]
Leap-frogging is a good game for children but fraught with danger when applied to cultural or social reform. This is the primary lesson emerging from the Jallikattu protests playing out in Tamil Nadu. Social reforms- changing age old habits and beliefs- cannot be enforced by governmental or judicial dictats overnight: they have to be nurtured through patient persuasion, enlightened leadership and personal example. In a country where politicians prefer to be led by the nose rather than themselves leading by personal conduct and example, and where the judiciary is increasingly being viewed as residing in an ivory tower, there can be no quick fixes. In the age of marketing even progressive and enlightened ideas have to be sold to the people. Jallikattu is the latest example of this, but there is an even bigger precipice the executive and judiciary are rushing towards- the Uniform Civil Code.
The Indian state appears to be in a similar unseemly haste in trying to push through a UCC. Granted, it is an ideal we should be working towards, but it would be a good idea to get the 200 million plus Muslims , Christians and other minorities to also share this view before we ram it down their “ regressive” throats. All social, religious and cultural beliefs are legal fictions- imagined truths- and what is held to be “ correct” in one age may have been unacceptable at another time. Gender equality did not exist a hundred years ago, racial superiority of the “ whites” was a biological truism till the 19th century, slavery was the economic bedrock of the imperial age. These are widely accepted as reprehensible beliefs today, but it should not be forgotten that it took hundreds of years and many social movements to change these mind sets. Laws FOLLOWED these efforts to give them permanent legitimacy, they did not precede them. The mistake we appear to be making with UCC is precisely this-we are rushing through with coercive legislation without preparing the ground to receive these seeds of change. This is a recipe for disaster: Jallikattu is only a curtain-raiser.
There is no constitutional compulsion for either the govt. or the judiciary to be in such a hurry: the Constitution does not mandate a UCC, it is a recommendation in the Directive Principles. The latter are not justiciable as per Article 37. Furthermore, there is a legal quandary here: whereas Articles 14 to 24 of the Constitution prescribe an individual’s rights to freedom and equality ( the purported justification for a UCC), Articles 25-30 protect the religious and cultural freedom of minorities. This apparent friction and clash between the two sets of Articles may or may not give a handle to those who oppose the reform, but it should at least give the govt enough reason to pause and try to build a consensus before proceeding further.
The political context in India today is not conducive for such a radical reform: the ruling party, with its overt and aggressive Hindu ideology and agenda, is not perceived to be an honest broker. The Muslim community increasingly perceives itself to be under siege, and not only because of the intemperate remarks and threats from adherents of the BJP. The actions of the govt. itself have given enough reason for apprehending that this community is being targeted: the Enemy Property Act Amendment Bill 2016 will confiscate the properties of thousands of Muslims who chose to stay on in India post 1947 and 1968 ( retrospectively) and also deny them recourse to the courts, the govt. has announced that it will accept only non-Muslim immigrants from neighbouring countries, a virtual media and legal war has been launched against the practice of Triple Talaq, the Law Commission has circulated a questionnaire on Triple Talaq whose bias is self evident, the hard line approach to the Kashmiris even after months of privation and a hundred deaths engenders suspicions in the minds of the Muslims about the true objectives of the govt.
The ideal of uniform civil rights can be achieved without confrontation if we exercise patience and an understanding of the minority mind set. This is a psyche which is constantly apprehensive about being dominated by the majority and thus asserts its identity as a defensive manoeuvre, and in this effort religious and cultural symbolism plays a large part. Delegitimising them by laws only strengthens their resistance to any change. Instead, if left to the normal legal and social processes the desired change will come about organically, slowly but surely, without any communal overtones. And this is already happening. Divorced muslim women have been quietly granted maintenance ( something their clerics had been opposing)-a Delhi High court judgement of 2011 and a Supreme Court order of 2015 have now made this the law. Similarly, triple talaq has also been struck down by the courts: the SC in the Shamim Ara case of 2002 has declared it illegal and invalid. As recently as on the 11th of January 2017 the Madras High Court declared the issue of triple talaq certificates by a Kazi “ has no legal authority”. On the 19th of this month itself the Supreme Court has ruled that the church does not have the jurisdiction to adjudicate matrimonial disputes between Christian couples and that the Indian Divorce Act 1989 overrides Christian personal law. The Parsis- one of our most insular and protective minority communities- are also changing, in the face of opposition from their own religious leaders. They are gradually giving up one of their most hallowed traditions- the practice of leaving the bodies of their dead in Dakhmas to be consumed by vultures. Parsis in Mumbai are now opting for cremation, and this January 8th Zoroastrians in Navsari in Gujarat( the birthplace of Dadabhai Naoroji and the hometown of the Tatas) have voted to allow burials. The near extinction of vultures in India have forced this change, not some aggressive legislation. Even the Catholic church, under intense public pressure, has accepted homosexuality. There have been no agitations against these judgements. The point I’m making is that our political parties should stop grandstanding on such sensitive matters, and allow the changes to come about organically and gradually,and not inflict another “ surgical strike.” Education, exposure, social mobility, improved incomes and public opinion will do a better job of bringing about these changes. If the Jallikattu furore teaches us this at least, it will have served the nation well .